POSTSCRIPT / February 19, 2004 / Thursday

By FEDERICO D. PASCUAL JR.

Philippine STAR Columnist

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As expected, SC voids Comelec mega-contract

A VOICE STILLED: The passing away yesterday of veteran broadcaster Frankie Evangelista of ABS-CBN is a big loss to media that even now are in need of more professionals of his caliber.

As it is with the radio-TV audience that Ka Kiko had served faithfully, we will miss his insightful observations on sizzling public issues and community affairs. Our condolence to his bereaved family.

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FINAL KNOCKOUT: Now the Commission on Elections can concentrate on preparing for the May national elections without the Korean automated counting machines that it had bought under an illegal contract.

As counseled by its numerous friends, the Comelec should not have wasted time asking for the reconsideration of the Supreme Court decision striking down its P1.3-billion contract with a “Mega Pacific” consortium that was not even a bidder.

The high court denied with finality the other day the motion for reconsideration. The decision, penned by Associate Justice Artemio V. Panganiban, was concurred in by eight other justices, with three others dissenting.

We think it is pointless for any affected party to try massaging the deal back to life.

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LEASE OPTION: Comelec chairman Benjamin Abalos is now talking about possibly renting some of the almost 2,000 counting machines. He has ruled out returning the equipment and getting back the P850 million his office had paid for it.

We suggested earlier that the better option was (past tense) to lease the equipment instead of buying it. Why get stuck with computers that would just be overtaken by dust and obsolescence in storage in-between electoral exercises?

It may be too late now to lease the Korean equipment. Such an option should have been explored before the controversial decision to buy was made.

(But even at this late stage and even without the Korean computers, the Comelec can still computerize some stages of the election in compliance with the law on computerization. There is a technically and legally feasible way.)

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LEGAL CONTORTIONS: Leasing or renting the Korean equipment now, as Abalos has hinted, raises some ticklish questions.

If the Comelec keeps the machines as it intends to do and the supplier refuses to refund the payment, does it mean that the equipment is now owned by the poll body?

And if the computers are now owned by the Comelec, how can it rent them from the supplier who no longer owns them?

It would take a lot of legal contortion for the Comelec to now accept and presume to own the counting machines after the lightning from the Supreme Court struck twice and voided the deal with finality.

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INSINUATIONS HURT: Abalos earlier said that one big reason for his deciding to move for reconsideration is the “unfair and unkind insinuation” that some Comelec officials received kickbacks for the juicy contract.

In its strongly worded first decision, the court went out of its usual way to direct the Ombudsman to look into the criminal liability of persons who had a hand in sealing the illegal transaction.

Abalos, who is in the twilight of his career in government, expressed hurt, even anger, over insinuations that some poll officials may have benefited materially from the transaction.

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NO NEW ARGUMENTS: Panganiban said the motion for reconsideration merely raised the same “procedural and substantive issues already exhaustively discussed and definitively passed upon” in the first decision.

“Other than rehashing the same basic arguments already made, no compelling reasons have been adduced to justify the modification or reversal of the Court’s findings and conclusions on such issues,” he said.

He devoted more paragraphs addressing the movants’ contention that the decision was “grossly unfair” in exposing them to possible criminal prosecution.

Although the decision directed the Ombudsman to “determine the criminal liability, if any, of the public officials (and conspiring private individuals, if any),” Panganiban said the court did not make any premature conclusion on any wrongdoing.

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AMARI & PIATCO: Referring to observations that the court did not give the same direction to the Ombudsman and the Solicitor General in the case of officials involved in the Amari and PIATCO cases, Panganiban said:

“Such misplaced outbursts merely show that, up to this day, the Honorable Comelec Commissioners and the other officials concerned have not realized the gravity of their misdeeds.

“While the contracts in the Amari and PIATCO cases were mainly commercial in nature, here — as already explained in the decision — the ‘illegal, hasty and imprudent actions of the Commission have not only desecrated legal and jurisprudential norms (governing contracts and public biddings) but have also cast serious doubts upon the poll body’s ability and capacity to conduct automated elections.”

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PUBLIC FUNDS INVOLVED: Panganiban pointed out that in the Amari and PIATCO cases, there was no irregular disbursement of public funds in the reclamation project and airport terminal construction involved.

“What were used in the works involved in those cases were mostly private funds,” he said. “Here, however, the government has earmarked P1.3 billion for the automation of the ballot counting and canvassing, of which nearly P850 million has already been irregularly paid to private respondents by Comelec.”

“Public interest requires the recovery of this enormous sum, and the punishment of those who may be criminally responsible therefore,” he said.

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AUTOMATION UNOPPOSED: There is a misimpression in some quarters that the court, by its decision, prohibited the automation of the elections. How can the court take such a position contrary to the law mandating computerized elections?

The court merely voided the contract. It is merely incidental, not intentional, that as a result of the SC ruling, the Comelec may have a more difficult time carrying out the automation of the elections.

The poll body brought the difficult problem upon itself.

The court did not state that it was opposed to automation. It merely voided the contract for having been “made and executed with inexplicable haste, in grave abuse of discretion and in clear violation not only of law and settled jurisprudence… but also of the bidding rules and requirements of the Commission on Election itself.”

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NO LEGAL ADVICE: The court rejected the prayer for a new hearing, pointing out that it has given the parties “more than sufficient opportunity to explain their causes through their kilometric pleadings and their exhaustive presentations during the oral argument.”

“Granting their plea for a new hearing will just unnecessarily delay this case and deflect the attention of the Commission on Elections from its primary task of insuring a credible, orderly and peaceful election,” the court said.

As for Comelec’s request for clarification on the effect of the decision on a congressional proposal for partial automation in some selected precincts, the court said it does not render advisory opinions.

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(First published in the Philippine STAR of February 19, 2004)

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